Post Date: Friday, July 5, 2019

05.07.2019: Abortion has always been a highly contentious issue in the spheres of philosophy, religion, culture and politics. However, at the core of the debate on abortion is the question: who gets to decide to terminate a pregnancy? The tension between the individual’s autonomy, communal social and religious influences and legal restrictions has always frustrated the fates of pregnant people, whose lives and bodily integrity are deeply impacted by either the continuation or termination of pregnancy. Courts have often been assigned the role of ultimate arbiter in abortion cases across the world. But courts have always had a particularly complicated response to cases in which abortion issues are raised. Whether legislation criminalises, regulates or protects access to abortion services, its effect and courts’ judgments have significant implications for pregnant persons’ right to health and their ability to live a life with dignity. In the past, underlying public moral and social contexts have often determined the direction courts have taken in dealing with cases on abortion. However, with a shift towards employing a human rights-based approach when analysing access to healthcare in foreign jurisdictions, it could be argued that the role of the judiciary in matters of reproductive health and rights is shifting.

The central assumption of this book is that access to abortion is a right. All pregnant persons are rights holders, by virtue of their personhood and human dignity. When recognised as a right, access to abortion places certain obligations on States to respect, protect and fulfil this right, and the project of this book will be to examine how this has been and could be, achieved. When understood as a human right, the right of access to abortion becomes a direct concern for policymakers to meet the obligations it involves to realise the right in legal, political and practical terms. Reproductive rights have emerged from international human rights movements, led by pregnant persons the world over. This unity between pregnant persons reflects the universality of the right to access to abortion and highlights the need to integrate the right in every State.The right to abortion has two dimensions that mutually reinforce one another. It involves both the right to reproductive autonomy and the right to health. They have frequently been framed as negative rights, protecting the rights of the individual to make autonomous reproductive decisions, grounded in civil and political rights to privacy, liberty, equality, autonomy, and dignity. This interpretation centres on the decisional aspects of abortion and seeks to protect those factors which ensure the right to choose without coercion. The right to health, on the other hand, is viewed as a socio-economic right, focusing on the provision of access to health services. This interpretation centres on the foundational aspects of abortion. In other words, it focuses on the services and materials needed for the right to reproductive health to be realised. The book will rely on these two dimensional understanding of the right to abortion in order to assess the current state of abortion law in India and abroad. It should be obvious that autonomy and self-determination are the primary factors that should influence the exercise of the rights defined above.

This book seeks to examine how courts have addressed these questions and explain issues related to abortion through the lived experience of pregnant persons in India, considering their socioeconomic and cultural contexts. Understanding the factors driving individuals to seek abortions and the factors that bar them from accessing abortion services should be an essential element when considering how a court and medical practitioners intervene in matters so personal to the individual. As such, Chapter One will briefly explore the drafting and impact of the MTP Act and how it has affected pregnant persons, their families, medical practitioners and abortion service providers. Also, the current state of the healthcare system and its treatment of pregnant persons in India will be briefly examined to determine the current practical barriers to realising the right to abortion, in spite of the specific protections of the MTP Act.

The core of the book will focus on specifically tracing the trends in Indian courts’ interpretations of the provisions of the MTP Act and the underlying implications of these shifts toward holistically examining the situation of each pregnant person. Factors will be examined including statutory interpretation, the role of medical professionals’ testimonies and consideration of the right to life, as enshrined in Article 21 of the Constitution of India. Analysing the changing approach in the Supreme Court of India and other High Courts by outlining landmark judgments will be the focus of Chapter Two. Additionally, specific focus will be given to examining the trajectory of the Bombay High Court’s approach to illuminate a new innovative interpretation of the MTP Act. Chapter Three will then analyse recent political and legislative challenges to the MTP Act, particularly in the light of several pending amendment bills. Determining what these proposed amendments represent in practical and rhetorical terms for the rights of pregnant persons will also reveal the public’s and the government’s changing perception of the right to abortion.

Finally, Chapter Four will examine the developing characterisation of abortion as a distinct human right in international law and how national jurisdictions have dealt with cases of abortion from differing moral, religious and political perspectives. This section will highlight examples of best practice, in countries that protect both the decisional and foundational dimensions of the right to abortion. It will also explore the indivisible and interdependent nature of the right to abortion with other rights, including the rights to health, privacy, non-discrimination and freedom from cruel and inhuman treatment. Additionally, it will determine the scope of India’s obligation to provide access to abortion under international law according to its ratification of particular international conventions.